State v. Coleman

MALLARD, Chief Judge.

The only questions argued and attempted to be raised by the defendant on this appeal are whether the trial judge committed error in allowing the State’s rebuttal witness, Barbara Jean Melvin, to testify as to an abortion which she said was performed on her by the defendant in 1968 and in refusing to allow the defendant’s motion to strike the testimony relating to the 1968 abortion, and in denying the defense motion for mistrial.

The State’s rebuttal witness, Barbara Jean Melvin, testified, without objection, that:

“I first recall meeting Mrs. Coleman in 1968. In 1968, I had occasion to become pregnant while still in school. I was a senior at E. E. Smith. I was not married at the time. I was living at home with my mother and sisters and brothers.
At that time I had an abortion. The abortion was performed by Mrs. Coleman.”

The rule is that an objection must be made to an improper question without waiting for the answer in order to present the contention that the answer was incompetent. State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972); State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970), cert. denied, 400 U.S. 946 (1970); State v. Perry, 275 N.C. 565, 169 S.E. 2d 839 (1969); State v. Williams, 274 N.C. 328, 163 S.E. 2d 353 (1968); Johnson v. Lamb, 273 N.C. 701, 161 S.E. 2d 131 (1968); State v. Powell, 11 N.C. App. 465, 181 S.E. 2d 754 (1971), cert. denied, 279 N.C. 396 (1971); State v. Wingard, 10 N.C. App. 101, 177 S.E. 2d 765 (1970), appeal dismissed, 277 N.C. 727 (1971); State v. Barrow, 6 N.C. App. 475, 170 S.E. 2d 563 (1969); 3 Strong, N. C. Index 2d, Criminal Law, § 162. In the case at bar, due to the failure of the defendant to object to the questions asked, *14the trial judge did not commit error in allowing the State’s rebuttal witness, Barbara Jean Melvin, to testify as to an abortion which she said was performed on her by the defendant in 1968.

After Barbara had testified on direct examination, the defendant cross-examined her as to where, when, and how the 1968 abortion was performed and how she felt while it was being performed. Thereafter the following appears in the record:

“At this point, defense counsel moved to strike that part of the witness’ testimony relating to her having had an abortion at the hands of the defendant in 1968, on the grounds that this was impeachment of a collateral matter and not competent.
Motion denied. Defendant excepts.
Exception No. 9.
The defendant then moved for a mistrial. Motion denied.
Exception No. 10.”
The rule is that when there is no objection to the question or answer, the allowance of the motion to strike is discretionary with the court unless the evidence is forbidden by statute or results from questions asked by the trial judge or a juror. State v. Blackwell, supra; State v. Perry, supra; State v. Williams, supra; State v. Powell, supra; 3 Strong, N. C. Index 2d, Criminal Law, § 162. Moreover, in the case at bar the motion to strike the testimony as to the prior abortion was not made in apt time. It was made after the witness had completed her direct testimony on rebuttal and after she had been extensively cross-examined. A motion to strike, not made in apt time, is also directed to the discretion of the trial judge. In this case we have found no statute forbidding evidence of a prior abortion on the trial of a defendant for performing an abortion. Neither does it appear that the evidence of the 1968 abortion was the result of questions asked by the trial judge or a juror. As was stated in State v. Blackwell, supra:
“It is apparent that defendant’s able and experienced trial lawyer chose to waive the right to interpose objection *15for the purpose of high-lighting and accentuating his skillful attack by cross-examination on the veracity and credibility of the prosecuting witness’ testimony.”

We hold that under the circumstances of this case, the trial judge did not abuse his discretion in failing to allow the defendant’s motion to strike the evidence relating to the 1968 abortion or in failing to allow the defendant’s motion for a mistrial.

In the trial we find no prejudicial error.

No error.

Judges Morris and Hedrick concur.